Celeste DeMarco v. Wellesley, Town of - Police Department (SPR 20231168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 16, 2023 SPR23/1168 Cheryl Carlson Records Manager Wellesley Police Department 485 Washington Street Wellesley, MA 02482 Dear Ms. Carlson: I have received the petition of Celeste DeMarco appealing the response of the Wellesley Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 14, 2023, Ms. DeMarco requested: From the time period of January 1, 2021-January 1, 2023, [p]lease produce all correspondence in any medium, notes, memorandum and the like reflecting or embodying communication between any officer in the [Department] and any member of the Wellesley Republican Town Committee [Town Committee], including, but not limited to [six identified persons]. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1036 Determination of the Supervisor of Records (Supervisor) (May 31, 2023). In my May 31st determination, I closed the appeal after I learned that the Department intends to provide a subsequent response to Ms. DeMarco relating to her May 14th request. On June 1, 2023, the Department provided a response. As a result of the Department’s response, Ms. DeMarco petitioned the Supervisor, and the current appeal, SPR23/1168, was opened. In her petition, Ms. DeMarco indicates that she is appealing the Department’s June 1st response. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Cheryl Carlson SPR23/1168 Page 2 June 16, 2023 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s June 1st response In its June 1, 2023 response, the Department indicates: [a]s stated previously public records request[s] must reasonably describe the records sought. See G.L. c. 66, §10(a)(i). The reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production. See, Jaideep Chawla v. Dept of Revenue, Suffolk Sup. No. 1784CV02087, at 2. (January 23, 2019). Additionally, while a records requestor has a right to request records, they must do so in a reasonable manner. See, Bruce Friedman v. Division of Administrative Law Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). It is not reasonable to inundate… [the record holder] with drain-the ocean records requests. The Department continues to maintain that your request fails to meet the burden established under the law. Specifically, your request does not reasonably describe the records sought as the [Department] does not know the identity of all members of the Wellesley Republican Town Committee [Committee], a private organization completely unaffiliated with the [Town]. A quick search of the Committee’s website suggests that any registered Republican residing in Town can become a member of the Committee. As the Department has no way of identifying all members of the Committee, your request fails to describe the records sought with the required level of specificity. However, even if you have met this initial burden, your request is so overly broad and expansive that it would consume and inundate the Department. See Friedman, at 3, supra. In order to determine whether there was any communication between

Cheryl Carlson SPR23/1168 Page 3 June 16, 2023 a [Department] Police Officer and a member of the [Committee] reflected in any medium would require the Department to review all documents, emails, video recordings, and phone messages in its possession, many of which are not in electronic format or not easily searchable by key word. For example, the Department would have to review every traffic report to see if a member of the Committee witnessed a traffic incident and provided a statement to the police officer responding to the scene. Thus, even if the incident didn’t involve the individual member, the communication would be reflected in the report and responsive to your request. This search would take a significant amount of time and resources. Broad Request Based on a review of Ms. DeMarco’s May 14th request, this office finds that her request is very broad in scope. Please be advised, in Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2.

Cheryl Carlson SPR23/1168 Page 4 June 16, 2023 Modification of the Broad Request In the Department’s response, the Department, pursuant to G. L. c. 66, § 10(b)(viii), suggested a modification of the scope of Ms. DeMarco’s request. Further, the Department suggests, “…some potential ways to modify the request are as follows: [1] identify the names of all the Wellesley Town Committee members; [2] limit your request to emails between listed Committee members only (emails are far easier to search than other types of records); or [3] provide a specific topic of communication you are interested in (i.e., all emails containing the word traffic or traffic stop).” In addition, the Department asserts, “… [it] would be willing to work with you to modify the scope of the request in order to allow us to produce the records sought more efficiently and affordably. Please do not hesitate to contact the [Department].” Whereas the Department has offered a reasonable modification of the scope of the May 14th request, I find the Department has met its burden of responding to Ms. DeMarco’s request. This office encourages Ms. DeMarco and the Department to continue communicating to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, if outstanding issues remain after Ms. DeMarco and the Department communicate further as described above, Ms. DeMarco may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Celeste DeMarco